When the nation is asking for One Nation One Tax, One Nation One Poll and One Nation One Law, All India Muslim Personal Law Board or (AIMPLB) has decided to open Darul Qaza (Sharia courts) in all districts of the country for Muslims to arbitrate issues as per Sharia (Islamic laws). Sharia is the theory of Islamic jurisprudence and is derived from the religious precepts of Islam, particularly the Quran and the Hadith.
Different Muslim-majority countries around the globe have incorporated Sharia at some level in their legal framework — some fully, some partially and some as a guideline. Many use Sharia for personal law, which includes marriage, divorce, domestic violence, child support, family law, inheritance and such matters. Saudi Arabia, Yemen, Brunei, Qatar, Pakistan, United Arab Emirates, Iraq, Iran, Afghanistan, Sudan and Mauritania apply Sharia also in their criminal justice system, to varying extents.
In India, during Constituent Assembly debates of Indian Constitution and earlier during negotiations with British, Muslim groups, consisting of only Muslim men, have successfully bargained for Sharia for the Muslim personal law, as most of the Sharia personal laws are quite patriarchal in nature and skewed against women. For criminal laws, they conveniently settled with Indian Penal Code (IPC), as Sharia punishments for criminal offences can send a chill down your spine.
A study into Sharia tenants reveals that the Islamic personal laws are heavily patriarchal. For example, bigamy is punishable by law in all communities but in Muslims. Following their strategy of “divide and rule”, British followed the tactics of Muslim appeasement and the Muslim Personal Law (Shariat) Application Act 1937 was passed by the British government to ensure that the Muslims were insulated from the common law and that only their personal law would be applicable to them.
As per Indian Constitution, bigamous marriages are illegal among Christians (Act XV of 1872), Parsis (Act II of 1936) and Hindus, Buddhists, Sikhs and Jains (Act XXV of 1955). Enactment of a Uniform Civil Code would impinge upon Muslim rights to polygamy.
Congress took the cue from the British and practiced Muslim appeasement before and after Independence. The nation has not forgotten how Rajiv Gandhi went overboard to please Muslim clerics in Shah Bano case. A 65-year-old Muslim woman, Shah Bano fought a lonely battle for maintenance after her divorce. After a decade-long struggle, the highest court of the country awarded her the right to Rs 180 a month as alimony. Shah Bano's husband who divorced her by merely uttering the word talaq thrice happened to be a lawyer. He pleaded that according to Sharia she was entitled to give maintenance only for the period of iddat—the three months following divorce.
To appease maulvis, Rajiv Gandhi government brought in a law to revoke the apex court award, which was in the favour of the Muslim women. It took almost 70 years and a positive environment created by Narendra Modi-led BJP government for a group of Muslim women to again go to the court against the regressive practice of triple talaq.
All India Muslim Personal Law Board (AIMPLB) again went against the court verdict but unlike Rajiv the Gandhi government this time government stood with Muslim women. Similarly, under Muslim personal law women have subordinate rights of inheritance. Now one can understand that why Sharia personal patriarchal laws are loved by bodies like All India Muslim Personal Law Board (AIMPLB), which has no women member on its board.
As the government of the day is championing for One Nation One Law, and courts are ruling in favour of women, the all men team of AIMPLB wants to start Sharia courts in every district of India for the Muslim community, taking a cue from their masters in Saudi Arabia. But why stop short at using Sharia only for matters of personal law. If Sharia jurisprudence is so scientific, just and desirable, why not extend it for deciding the punishment even for the criminal cases for the Muslim community.
Under Sharia Criminal law, the punishments for different criminal offences are of a different order. For example, punishment for highway robbery is a crucifixion, amputation of the right hand and the left foot, or banishment based on severity and scenario. Punishment for Apostasy, meaning leaving Islam for another religion or for atheism is a death penalty. As per Sharia pre-marital sex and extra-marital sex are grave offences and offenders are punished with public stoning or lashing. If a Muslim is caught drinking alcohol the person should be punished with 40 to 80 lashes. Punishment for most categories of theft is amputation of hands. So if Muslim Law Board and its supporters in the Congress have their way, for an act of theft a person would go to jail under Indian Penal Code but another will have his hands chopped-off under Sharia.
(Shantanu Gupta is the author Yogi Adityanath’s biography The Monk Who Became Chief Minister. Views are personal.)
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